legal unit 4 aos 1 sac b

Doctrine of precedent

 a rule in which judges must follow the reasons for decisions given by superior courts in the same court hierarchy when deciding a case before them with similar facts.

A judge’s written reasons for their decisions are divided into two parts:

• Ratio decidendi, meaning ‘the reason for the decision’. This is the legal reason for the decision. It is the binding part of the judgment, that is, the ratio is the principle of law that must be followed by courts lower in the hierarchy.

• Obiter dictum, meaning ‘by the way’. These are comments made by the judge to provide context to the judgment or legal suggestions. This is the persuasive part of the judgment, that is, it does not have to be followed, but can provide guiding principles for judges in future cases.

Binding precedent

legal reasoning of a higher court that must be followed by all lower courts in the same court hierarchy where the material facts are similar.

Persuasive precedent

legal reasoning that can act as a guide for judges even though they are not bound to follow it.

Reversing a precedent

an act whereby a superior court changes a precedent set by a lower court in the same case on appeal.

Overruling a precedent

an act whereby a superior court changes a previous decision made by a lower court, when ruling on a different case.

Distinguishing a precedent

an act whereby a lower court avoids applying a precedent by demonstrating that the case before it has different material facts to the case in which the precedent was established

Disapproving a precedent

an act whereby a lower court expresses its disapproval of a precedent established by a higher court through its written judgment, but is still bound to follow it.

strengths of the doctrine of precedent

• If no statute or common law exists, or it is not clear how the law should be applied to the case before them, judges are able to create a precedent, thereby developing the law.

• Judges on the same hierarchical level or from superior courts can overrule or reverse a decision made by lower courts in the hierarchy, therefore developing the common law

limitations of the doctrine of precedent

• In civil disputes, judges must wait for an individual with standing to bring a civil case to court before they can establish a new law. Similarly, in the context of criminal law, the courts must wait for an accused to be brought to court before they can establish new law. Courts cannot develop laws whenever they wish.

• Judges make law ex post facto, meaning they make laws retrospectively only after a case is brought before them.

Judicial conservatism

a judicial approach where a judge is reluctant to develop new law as they feel it is the role of parliament, as the elected representative body, to do so.

strengths of judicial conservatism

• Conservative judges show restraint in making decisions that could significantly change the law, ensuring the law remains stable.

• Judicial conservatism prevents the creation of controversial laws as judges do not base their decisions on their own political views and opinions.

limitations of judicial conservatism

• Conservative judges tend to interpret the law narrowly, which restricts courts from making substantial changes to the law.

• Judicial conservatism may result in judges in superior courts applying outdated precedents rather than creating new ones, even in circumstances when the court is not bound to follow the existing precedent. This may mean that relevant community views and values are no longer reflected in the existing precedent.

Judicial activism

a judicial approach where a judge takes into account numerous social and political factors when interpreting the law and deciding cases.

judicial activism strengths

• Judges who take an activist approach feel their role extends beyond merely applying legal principles to the case before them and therefore, undertake a secondary role in developing common law where necessary.

• Unlike parliament, judges are not elected by the people and can, therefore, make controversial changes in the law without the fear of not being re-elected.

judicial activism limitations

• Courts must still wait for a relevant case before actively changing the law.

• Judges are not elected by the wider community meaning that the common law created may not actually reflect the views and values of the majority

Costs

the amount of money, including court fees and fees for legal representation, that has to be paid to resolve a legal dispute

• fees for legal representation, such as paying a solicitor and a barrister

• court fees to commence and progress a court proceeding, such as court filing fees

• jury fees if one or both of the parties request one

• some or all of the other parties’ fees, depending on the outcome of the case.

costs strengths

• Victoria Legal Aid (VLA) is available for some civil matters, meaning parties may be able to access resources that can assist them in pursuing their case through the courts. This can provide more opportunities for the courts to make law.

• Judges often give directions to parties, such as limiting the number of witnesses or topics that they may be questioned about, with the aim of reducing the costs associated with a trial.

• As a result, the time a court proceeding takes is lessened, and hence, the costs are reduced.

• Therefore, having a case heard in the courts may be more affordable for parties, ultimately providing greater opportunities for the courts to make law.

costs limitations

• The eligibility criteria for VLA is strict for civil cases, as it is generally limited to criminal matters and is not an exhaustive resource.

• Therefore, parties who are ineligible for VLA assistance or legal representation may be unable to afford the costs involved in bringing their case to the courts, reducing the ability of the courts to make law.

• The reluctance of parties to pursue a matter through the courts, due to the high costs, means there are fewer opportunities for judges to develop common law.

• Consequently, outdated precedents can remain binding in the courts.

Time in bringing a case to court

Pursuing a claim in court can be very time-consuming. There is a significant backlog of cases in the justice system, which means individuals may have to wait months, or even years, to have a matter heard before the courts.

• the significant amount of time it takes for parties to gather evidence and prepare for a trial

• lengthy trial procedures, such as the time spent hearing the oral arguments of legal practitioners and examining witnesses

• delay tactics by parties to avoid proceeding to trial

strengths of time

• Judges will often give directions to parties, such as limiting the number of witnesses or topics they are questioned on, with the aim of reducing the length of a trial.

• As a result, the parties may be able to have their case heard in a timely manner, providing more opportunities for the courts to make law as a greater number of cases per year can come before the courts.

• The existence of the Victorian court hierarchy enables administrative convenience to be achieved, separating disputes across the courts, thereby minimising delays.

• This permits the courts to hear more cases each year, likely increasing their capacity to create or amend common law.

limitations of time

• Judges in superior courts need to wait for a case to come before them before they can develop law.

• The time taken to appeal to the higher courts slows the development of the law as precedent is generally set on appeal.

• Some cases in higher courts can take months to be determined, resulting in delays to the law being amended.

Standing

the requirement that, in order to bring a case to court, an individual or group must be affected by, or have a special interest in, the issues involved in the case.

• they are an aggrieved party, that is, a person whose interests are, or would be, adversely affected by the matters involved in the case.

• their private rights have been directly affected by a legal issue.

• the action of another party and the infringement would continue unless the court provided relief.

standing strengths

• The requirement for standing reduces the number of frivolous claims being made in court by individuals who merely have a general interest in the matters involved in a case.

• In turn, this reduces delays in the court system and allows more opportunities for genuine cases to be pursued through the courts.

standing limitations

• The requirement for standing limits the ability of individuals with a general interest to change the law as they will be unable to pursue the matter through the courts.

• This slows the development of the law as individuals who do not have standing, but wish to bring a case to court, cannot do so.

• Individuals with standing may still be unable to bring their case to the courts if they do not have the time or money to do so.

• In these instances, the courts will miss out on law-making opportunities.

Parliamentary supremacy

the legal concept that parliament has the freedom to make, amend, or abolish laws, subject to limitations outlined in the Australian Constitution, and is supreme over other arms of government, such as the executive and the judiciary

The ability of courts to influence parliament

• When handing down their final judgment, judges and magistrates may make remarks in obiter dictum, which often involves sharing an opinion on the current state of the law that applied to the case.

• These comments have proven to be influential on parliament as their aim is to create laws that suit the conditions of current-day society and improve the justice system for the better.

• However, parliament is never under any obligation to follow and adopt the issues raised in such statements.

Codification

the process of parliament confirming common law precedent by enacting legislation to give effect to the legal principles.

Abrogation

the process of parliament overruling common law by creating a statute contrary to a decision of the courts.

Deing v Tarola [1993] 2 VR 163

Facts:

• Deing wore a studded belt.

• Charged with possessing a regulated weapon under the Control of Weapons Act 1990 (Vic).

• Convicted, then appealed.

Legal Issue:

• Is a studded belt a regulated weapon?

Decision:

• No. A regulated weapon is an item commonly used only as a weapon.

• A studded belt is mainly clothing, so it is not a regulated weapon.

Significance:

• Conviction overturned.

• Narrowed the definition of "weapon" in the Act.

• Shows courts interpret words according to their ordinary purpose and Parliament's intent.